Southwest Pipe Services, Inc and Joe Briers v. Sunbelt Rentals, Inc.
Opinion
ACCEPTED
01-15-00124-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
6/26/2015 7:04:12 PM
CHRISTOPHER PRINE
CLERK
CAUSE NO. NO. 01-15-00124-CV
IN THE FILED IN 1st COURT OF APPEALS
HOUSTON, TEXAS
1st COURT OF APPEALS 6/26/2015 7:04:12 PM CHRISTOPHER A. PRINE
HOUSTON Clerk
SOUTHWEST PIPE SERVICES, INC. and JOE BRIERS Appellant
vs.
SUNBELT RENTALS, INC.
Appellees
APPEALED FROM THE COUNTY COURT AT LAW NO. 2 OF FORT BEND COUNTY, TEXAS
APPELLANT’S BRIEF
Jason A. Powers
SBOT 24027745
P.O. Box 272425
Houston, Texas 77277
Tele: (832) 647-8493
Fax: (832) 415-0593
jason@jasonapowers.com
APPELLANT REQUESTS AN ORAL ARGUMENT
CAUSE NO. NO. 01-15-00124-CV IN THE
1st COURT OF APPEALS
HOUSTON
SOUTHWEST PIPE SERVICES, INC. and JOE BRIERS Appellant
vs.
SUNBELT RENTALS, INC.
Appellees
APPEALED FROM THE COUNTY COURT AT LAW NO. 2 OF FORT BEND COUNTY, TEXAS
IDENTITIES OF PARTIES COUNSEL
Jason A. Powers ORLANDO & ORLANDO SBOT 24027745 Monica Schulz Orlando P.O. Box 272425 440 Louisiana, Ste 1110 Houston, Texas 77277 Houston, Texas 77002 Tele: (832) 647-8493 Tele: (713) 521-0800 Fax: (832) 415-0593 Fax: (713) 521-0842 jason@jasonapowers.com monicaorlando@orlandollp.com ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEES
ii
TABLE OF CONTENTS
TABLE OF CONTENTS ...................................................................................... iii TABLE OF AUTHORITIES ................................................................................ iv STATEMENT OF THE CASE ............................................................................. 6 QUESTIONS PRESENTED .................................................................................. 8 SUMMARY OF THE ARGUMENT .................................................................... 9 ARGUMENT & AUTHORITIES ....................................................................... 10 CERTIFICATE OF SERVICE ........................................................................... 13 ADDENDUM ............................................................. Error! Bookmark not defined.
iii
TABLE OF AUTHORITIES
CASES Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989)................................................ 10
City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979)
............................................................................................................................. 10
Collins v. County of El Paso, 954 S.W.2d 137, 145 (Tex.App.—El Paso 1997, pet. denied)................................................................................................................. 10
Huckabee v. Time Warner Entm’t Co., 19 S.W.3d 413, 422 (Tex.2000) .............. 10 Nixon. v. Mr. Propery Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985) ................... 10 STATUTES Civil Practice and Remedies Code section §33.004 (a). ........................................ 11 Civil Practice and Remedies Code section 33.011(6) ........................................ 9, 11 Civil Practice and Remedies Code section §33.004(f). .......................................... 11 Civil Practice and Remedies Code section 33.004 ....................................... 9, 11, 12
iv
CAUSE NO. NO. 01-15-00124-CV IN THE
1st COURT OF APPEALS
HOUSTON
SOUTHWEST PIPE SERVICES, INC. and JOE BRIERS Appellant
vs.
SUNBELT RENTALS, INC.
Appellees
APPEALED FROM THE COUNTY COURT AT LAW NO. 2 OF FORT BEND COUNTY, TEXAS
APPELLANT’S BRIEF
Appellants, Southwest Pipe Services, Inc. and Joe Briers submits their brief.
Appellants will be referred to as Appellants or SWP. Appellees will be referred to as Appellees or Sunbelt.
v
STATEMENT OF THE CASE
A. Overview of Facts Joe Briers is the owner of Southwest Pipe Services, Inc. (SWP). SWP is a company that removes abandoned oil, gas and water pipelines, cleans the pipe in accordance with EPA standards, and resells the pipe on the secondary market.
SWP rented equipment from Sunbelt for the removal of a pipeline in Upshur County, Texas. (Upshur pipe) SWP hired an independent contractor, Rodney Beshears, to remove the pipeline. Immediately thereafter Beshears started removing the Upshur pipe and began selling it out the back door to a local scrap dealer. SWP refused to pay for the rental equipment because SWP did not utilize the rental equipment. Sunbelt filed suit against SWP for breach of contract. SWP answered then filed a Motion to Leave to Designate a Responsible Third Party designating Rodney Beshears as a responsible third party. Sunbelt failed to file a response to SWP’s motion, thus Beshears was designated as a responsible third party as a matter of law. Sunbelt never contested the designation and has not cross-appealed the order granting Beshears as a responsible third party.
Sunbelt filed a Motion for Summary Judgment (First Motion) on July 21, 2014 and set the Motion for oral hearing on September 3, 2014. SWP responded to Sunbelt’s First Motion, and in response, Sunbelt passed the hearing and reset the First Motion to October 7, 2014 per correspondence dated September 3, 2014.
On September 19, 2014 Sunbelt filed an Amended Motion for Summary Judgment (Second Motion), attempting to correct the errors complained of in SWP’s Response. The Second Motion was set for hearing on November 12, 2014. SWP filed a response to the Second Motion that mimicked the Response to the First Motion, except for the objection of the lack of the business records affidavit that was made in the response to the First Motion. Sunbelt filed no reply or objection to SWP’s response to the First Motion or the Second Motion.
The Court heard Sunbelt’s Second Motion on November 12, 2014. The Court granted Sunbelt’s Motion. There was no record of the hearing.
.
QUESTIONS PRESENTED
I. THE COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF SUNBELT RENTALS, INC.
SUMMARY OF THE ARGUMENT
The Trial Court erred in granting summary judgment in favor of Sunbelt because a fact issue existed by virtue of Rodney Beshears being a designated a responsible third party.
On August 21, 2013, SWP filed a motion designating Rodney Beshears as a responsible third party. Sunbelt never filed a response to SWP’s Motion.
Rodney Behshears is a responsible third party within the meaning of Texas Civil Practice and Remedies Code section 33.011(6) because said party caused or contributed to the harm for which recovery of damages is being sought. CPRC §33.011(6). Defendants are entitled to designate a responsible third party under Texas Civil Practice and Remedies Code section 33.004.
Any arguments against the applicability of CPRC 33.004 have been waived by the Plaintiff, as well as any complaints in this appeal. The Plaintiff’s never filed a response to SWP’s Motion to Leave. The Plaintiff never made an objection to the designation, even though it was used in the defense of both Motions for Summary Judgment and Appellees never filed a cross-appeal complaining of the designation of Rodney Beshears. For the Court to deny the designation, the Court would be stepping into the Appellees shoes and making objections that were never made and affording relief never requested.
SWP should be allowed to proceed with Beshears as a responsible third party.
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